Thursday, December 12, 2013 - 03:59 PM

I also pointed out that this week's arrest in California actually wasn't under the state's new anti-revenge porn law, suggesting that while revenge porn is on the wane, the new laws specifically outlawing it don't seem to be particularly useful.

Amanda Levendowski studies innovation law and policy at NYU Law. She's currently researching how copyright law can be used to combat revenge porn. She's also probably our favorite TLDR listener (sorry, everyone). She's funny and incisive on Twitter, writes better headlines for TLDR stories than we do, and has a great blog about copyright & privacy stuff. Amanda wrote me a pretty persuasive email about why I'm probably mostly wrong in my anti-revenge porn optimism. She had several really good points.

The California law is meant to go after uploaders, not traffickers, so it makes sense that the ugotposted guy wasn’t prosecuted under it.

“It's the difference between going after Kim Dotcom and some guy in his mom's basement. You want to slap Dotcom with a helluva lot more than just copyright infringement. You want wire fraud! Racketeering! Conspiracy! So the California law may be fine for the little guy (ignoring the terrible drafting of the law), but the new case isn't about the little guy.”

Levendowski says the larger problem here is that these revenge porn prosecutions don’t help victims.

“These lawsuits don't do much for revenge porn victims. The available damages don't, and can't, force traffickers to remove images from other websites. The driving danger of revenge porn is that the images don't just "go away" when IsAnyoneUp disappears - they reappear, they're cached, they're reposted. And these lawsuits don't have any affect on Section 230 of the Communications Decency Act, which immunizes sites like this from liability for user-generated content."

She suggests another solution: copyright law.

The great news is that an estimated 80% of revenge porn victims took the pictures themselves. Which means they own the copyright to the image. Which means that when their exes submit the photo to a revenge porn website, the interim copies and subsequent display of those selfies infringes on victims' exclusive copyrights to reproduce and display their work.

The less-great news is that I haven't seen many revenge porn victims' lawsuits using copyright law.

There's also a very under-explored possibility that the criminal laws that impose record-keeping requirements on pornographers may be applicable. Plaintiffs tend to focus on torts, like invasion of privacy or stalking or harassment. But Section 230 is going to strike nearly all of those down as dead on arrival. It's a disservice to victims everywhere, because bad cases make bad law. If these lawsuits are dismissed, courts may misread that those decisions as "Invasion of privacy doesn't apply to revenge porn," rather than "This was a legally unsound presentation of the facts and law. Come back with something better, and we'll talk."